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“I'm Litigatin' It”: Infringement, Dilution, and Parody Under the Lanham

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“I'm Litigatin' It”: Infringement, Dilution, and Parody Under the Lanham Northwestern Journal of Technology and Intellectual Property Volume 9 Article 6 Issue 7 Spring Spring 2011 “I’m Litigatin’ It”: Infringement, Dilution, and Parody Under the Lanham Act Patrick Emerson Northwestern University School of Law, Candidate for Juris Doctor in 2011, [email protected] Recommended Citation Patrick Emerson, “I’m Litigatin’ It”: Infringement, Dilution, and Parody Under the Lanham Act, 9 Nw. J. Tech. & Intell. Prop. 477 (2011). https://scholarlycommons.law.northwestern.edu/njtip/vol9/iss7/6 This Comment is brought to you for free and open access by Northwestern Pritzker School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of Technology and Intellectual Property by an authorized editor of Northwestern Pritzker School of Law Scholarly Commons. NORTHWESTERN JOURNAL OF TECHNOLOGY AND INTELLECTUAL PROPERTY “I’m Litigatin’ It”: Infringement, Dilution, and Parody Under the Lanham Act Patrick Emerson Spring 2011 VOL. 9, NO. 7 © 2011 by Northwestern University School of Law Northwestern Journal of Technology and Intellectual Property Copyright 2011 by Northwestern University School of Law Volume 9, Number 7 (Spring 2011) Northwestern Journal of Technology and Intellectual Property “I’m Litigatin’ It”: Infringement, Dilution, and Parody Under the Lanham Act By Patrick Emerson* I. INTRODUCTION ¶1 Outside of the trademark registration process, the federal Lanham Act provides two causes of action, infringement and dilution, to holders of protectable trademarks to exclude others from using their marks.1 Both of these actions can be defeated by the defense of parody, which is a subset of the defense of “fair use.” For actions against dilution of protectable marks, Congress formally codified the parody defense for the first time in the Trademark Dilution Revision Act (“TDRA,” 2006) amendments to the Lanham Act.2 ¶2 This Comment argues that codification has done little to strengthen protection of trademark parody in the courts. Parody should be a strong bar to recovery, particularly in dilution actions in which the plaintiff is not required to prove confusion. I argue that the existing body of law in this area suggests courts tend to be moralistic and unpredictable in their interpretation of the parody defense. Finally, I suggest that the protection of parodies should be decided based on the question of whether a parody meets a stringent definition, not on whether the parody is more or less “commercial.” Focusing on the commercial dimension has negative consequences for freedom of consumption. Focusing instead on the definition of the parody protects consumer freedom, while effectively preventing free riding. ¶3 This Comment has a broad reach and seeks primarily to make a policy argument. I proceed by critically analyzing case law and the reasoning behind groups of decisions. I do not argue that any individual case should have been decided differently, but rather that courts’ approach to the parody defense should be reconsidered, as if necessary should the law. In Section II, I address the basic policy rationales behind infringement and dilution. In Section III, I address the portions of the Lanham Act defining infringement and dilution. In Section IV, I address the parody defense as it has been applied in the context of the Lanham Act and in similar state statutes.3 In Section V, I discuss the public policy arguments for refocusing judicial inquiry regarding the parody defense more towards the definition of a parody and away from the degree of commercialization, particularly when a defendant raises the parody defense against a dilution action. * Candidate for Juris Doctor, Northwestern University School of Law, 2011. 1 Lanham Act, 15 U.S.C. §§ 1051–1141n (2009). (Subsequent statutory citations are all to this Act, and are divided by the Act’s internal section numbers.) 2 § 43(c)(3)(A)(ii). 3 Although this Comment focuses on the Lanham Act, I also discuss case law applying dilution and infringement actions at state law, where the cases serve to illustrate trends in the law and judicial behavior. 477 NORTHWESTERN JOURNAL OF TECHNOLOGY AND INTELLECTUAL PROPERTY [2011 II. PUBLIC POLICY RATIONALES, INFRINGEMENT, AND DILUTION ¶4 A central distinction between dilution and infringement actions, both in federal trademark law and also in state equivalents, concerns the public policy underlying the actions. Dilution and infringement have been designed to protect two different groups. Primarily, the infringement action serves to protect consumers.4 Infringement is an action brought by a holder of a trademark; success in court provides immediate and obvious advantages for a producer of goods. However, consumers as a group are the stakeholders of greatest public policy concern. ¶5 For example, when I buy a “Big Mac” I (a consumer) expect to receive a product made by McDonald’s (a producer), with all of the associated ingredients and standards of quality in production. The public utility of the infringement cause of action inheres principally in the fact that I will not be bewildered into purchasing some interloping fast food item also called a “Big Mac,” or “Big Ma C”. Likewise, public utility derives from, for example, the protection of trade dress from infringement. Consumers are protected in the trade dress context from the confusion of entering a restaurant that looks exactly like a McDonald’s, but which is in fact a vegan diner. In short, producers are permitted by law to seek a remedy for infringement at least in part because of the goodwill, or even mere consumer recognition, attached to their product. ¶6 By contrast, the dilution action works principally for producers’ advantage.5 The dilution action does not directly pay dividends to consumers. Rather, the dilution action protects trademarks from other producers. It does so even where there is no appreciable risk that a consumer would mistake the origin of the product associated with the trademark.6 In fact dilution, which as with infringement is historically established in state law as well as federal, protects producers even where the defendant is not in direct competition with a plaintiff producer. For example, through this action, one court found that the Georgia anti-dilution statute prohibited the production of sexualized images featuring Milky Way’s trademarks “Poppin’ Fresh” and “Poppie Fresh.”7 This was not because of concern that consumers could be confused into thinking that the images were a product of Milky Way or because of Milky Way’s opportunity cost in not producing the images itself. Rather, the court ruled that indirect association with the images “tarnished” Milky Way’s marks. ¶7 Tarnishment is one of two subsets of dilution now codified under the TDRA, along with “blurring.” The full scope of the dilution action is discussed below. The salient point for the purposes of public policy, however, is that marks such as Milky Way’s are protected as if the exclusivity of the marks’ financial worth to one producer has inherent value—as if public policy demanded that no one else should benefit financially from the mark, even in a manner that the producer itself would never have considered. From a public policy point of view, protection did not attach to Milky Way’s marks, as with infringement, because of the public utility of avoiding consumer confusion. It attached out of private convenience to Milky Way. Granted, Milky Way might not have filed suit 4 Corina I. Cacovean, Is Free Riding Aided by Parody to Sneak Between the Cracks of the Trademark Dilution Revision Act?, 31 HASTINGS COMM. & ENT. L.J. 441, 444 (2009). 5 Id. 6 § 43(c)(1). 7 Pillsbury Co. v. Milky Way Prods., No. C78-679A, 1981 U.S. Dist. LEXIS 17722 (N.D. Ga. Dec. 24, 1981). 478 Vol. 9:7] Patrick Emerson under a dilution theory (or won), against a more quotidian use of its trademark—for example, “Milky Way Airlines.” However, this is only to say that there may be a corpus of uses of “Milky Way” that is immune to dilution suits because it is less offensive and thus less tarnishing. Whether under a tarnishment or a blurring theory of dilution, unconfused consumers are still deprived of the universe of uses that is not immune from dilution. As far as cartoon pornography is concerned, that is perhaps not much of a loss to consumers. However, as I will discuss, the reach of dilution is broader than the extreme example of Milky Way illustrates. III. THE LANHAM ACT A. Infringement ¶8 The Lanham Act prohibits anyone, without prior consent from the trademark registrant, from using in commerce any “reproduction, counterfeit, copy or colorable imitation of a registered mark in connection with the sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion . mistake, or to deceive.”8 It further prohibits reproduction, counterfeiting, copying, or imitating marks for reproduction in labels, signs, prints, packages, and so on, provided they are intended to be used in commerce in connection with sales, distribution, or advertising, and provided there is a likelihood of confusion.9 ¶9 In order to prove infringement against a third party under the Lanham Act a plaintiff needs to show that: (i) it owns a valid and protectable mark; (ii) the defendant has used a reproduction, counterfeit, copy or imitation of the mark in some kind of commerce without the plaintiff’s consent; and (iii) the defendant’s action is likely to cause confusion. ¶10 In keeping with the value ascribed to protecting potentially confused consumers, the courts have afforded wide latitude to what could constitute confusion. Confusion, broadly speaking, includes cases where consumers may not be confused as to the origin of the goods, but may be confused as to whether the non-mark-holding producer is in some way connected to the primary mark-holder.10 ¶11 The breadth of interpretation afforded to confusion has implications for the parody defense.
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